Summary
noting when determining that evidence was sufficient to support conviction for driving while intoxicated that defendant's "vehicle was found parked 'oddly' head-on across two spaces that had been marked diagonally"
Summary of this case from Huynh v. StateOpinion
NO. 02-15-00405-CR
04-21-2016
CASEY GEORGE ANDERSON APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
TRIAL COURT NO. 1414504 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
A jury convicted Appellant Casey George Anderson of the offense of misdemeanor driving while intoxicated (DWI), enhanced by a previous DWI conviction. See Tex. Penal Code Ann. §§ 49.04(a), .09(a) (West Supp. 2015). The trial court assessed his punishment at 180 days in jail, probated for twenty- four months, a twelve-month suspension of his driver's license, and an $800 fine. In one issue, Anderson argues that the evidence was insufficient to establish that he was operating a motor vehicle while intoxicated. We will affirm.
II. FACTUAL BACKGROUND
At 3:24 a.m. on May 16, 2015, Officer Daren Pool of the Grapevine Police Department was dispatched to the rear parking lot of Willhoite's bar. The dispatch was in response to a call from a security guard working the Main Street Festival—a three-day festival where craft brewers sell their products—who reported that a man was asleep in a vehicle with the engine on. When Officer Pool arrived at the scene, he discovered a vehicle parked "oddly" in that it was situated head-on across two spaces that had been marked diagonally. The vehicle's engine was running, its headlights were on, and it was in park. When Officer Pool approached, he noticed a strong odor of alcohol, and he saw Anderson asleep in the driver's seat with the seat leaned slightly back. Officer Pool testified that when he woke Anderson, Anderson reached for the gearshift, and Officer Pool stated that "it looked like [Anderson] was going for the gearshift to move it."
Officer Pool testified that Anderson's eyes were watery and bloodshot and that Anderson's speech was slurred. Anderson had urinated on himself. Anderson told Officer Pool that he had had five or six drinks, that he had been drinking in his vehicle, and that he had not been drinking "at the bar." Officer Pool, however, did not find any alcohol in Anderson's vehicle or any evidence that Anderson had been drinking in his vehicle. Anderson's wife testified that she saw charges on Anderson's debit card stemming from the night of his arrest indicating that he had been drinking at Willhoite's bar and another place called "Tap-In's."
Officer Pool testified that he administered a series of field-sobriety tests to Anderson. Officer Pool attempted to perform a horizontal gaze nystagmus test on Anderson, but was unable to complete the test because Anderson would not follow the stimulus as instructed. Anderson then failed the walk-and-turn test and the one-legged stand test. After failing those tests, Officer Pool arrested Anderson and transported him to the police station to take a specimen of his breath. See Tex. Transp. Code Ann. § 724.016 (West 2011). The analysis of the samples showed that Anderson had an alcohol concentration of 0.235 and 0.225 at 4:23 a.m. and 4:27 a.m., respectively—nearly three times above the legal limit. In the testing room, Anderson told Officer Pool that he had not been driving, and Officer Pool testified that he had not seen Anderson driving.
See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011) (defining intoxicated as "having an alcohol concentration of 0.08 or more").
III. THE EVIDENCE IS SUFFICIENT TO ESTABLISH
THE "OPERATING" ELEMENT OF DWI
In his sole issue, Anderson argues that the evidence was insufficient to support his conviction for DWI because the State did not establish that he was "operating" a motor vehicle while intoxicated. Tex. Penal Code Ann. § 49.04(a).
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49. The standard of review is the same for direct and circumstantial evidence cases—circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
B. The Law Regarding Operating a Motor Vehicle While Intoxicated
To establish the offense of driving while intoxicated, the State must prove that the defendant was intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a). The penal code does not define the term "operating." Id.; see Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012). The court of criminal appeals, however, has held that to find operation of a motor vehicle, "the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Under this standard, "operating" a motor vehicle is interpreted broadly. White v. State, 412 S.W.3d 125, 128 (Tex. App.—Eastland 2013, no pet.); Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.). "[W]hile driving does involve operation, operation does not necessarily involve driving." Denton, 911 S.W.2d at 389. Because "operating" is defined so broadly, "any action that is more than mere preparation toward operating the vehicle would necessarily be 'an action to affect the functioning of [a] vehicle in a manner that would enable the vehicle's use.'" White, 412 S.W.3d at 129 (quoting Barton v. State, 882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.)); Dornbusch, 262 S.W.3d at 436. The action need not be successful in causing the vehicle to function for the person to be operating it. White, 412 S.W.3d at 129; Smith v. State, 401 S.W.3d 915, 919 (Tex. App.—Texarkana 2013, pet. ref'd).
Courts applying the totality-of-the-circumstances test concerning the "operating" element of the offense of DWI, have held that evidence of "operating" is sufficient when the defendant is found behind the wheel asleep or unconscious with the engine running in a parked vehicle. See, e.g., Priego v. State, 457 S.W.3d 565, 570-71 (Tex. App.—Texarkana 2015, pet. ref'd) (holding evidence of "operating" sufficient when defendant found sleeping in vehicle in parking lot with engine running and gear selector in "park" position); Shields v. State, No. 04-11-00397-CR, 2012 WL 219432, at *3 (Tex. App.—San Antonio Jan. 25, 2012, pet. ref'd) (mem. op., not designated for publication) (holding evidence of "operating" sufficient when defendant found unconscious in driver's seat of vehicle parked between two moving lanes of traffic with engine running); Dornbusch, 262 S.W.3d at 437-38 (holding evidence of "operating" sufficient when defendant found sleeping in vehicle "parked oddly" in parking lot with engine running and lights on); Hearne v. State, 80 S.W.3d 677, 678-80 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding evidence of "operating" sufficient when defendant found sleeping in vehicle parked in moving lane of traffic with engine running and gearshift in "park").
C. Application of the Law to the Facts
At trial, Anderson stipulated that on May 16, 2015, he was intoxicated in a motor vehicle in a public place. The trial, thus, focused on the "operating" element of the offense—whether Anderson was operating a motor vehicle while intoxicated.
The evidence supports that stipulation. Anderson was found in a motor vehicle in a parking lot behind Willhoite's bar, and his alcohol concentration was nearly three times above the legal limit. See Tex. Penal Code Ann. § 49.01(2)(B); Truex v. State, No. 05-10-00665-CR, 2011 WL 17638, at *3 (Tex. App.—Dallas Jan. 5, 2011, no pet.) (mem. op., not designated for publication) ("A business parking lot has been repeatedly held to be a public place."); Tex. Dep't of Pub. Safety v. Briggs, No. 03-05-00331-CV, 2006 WL 305306, at *4 (Tex. App.—Austin Feb. 9, 2006, no pet.) (mem. op., not designated for publication) ("Courts have consistently held that parking lots are public places.").
The parties likewise focus their analyses on appeal on whether Anderson was operating a motor vehicle while intoxicated.
The State presented evidence at trial that Anderson's vehicle was found parked "oddly" head-on across two spaces that had been marked diagonally. The vehicle's engine was running and its headlights were turned on. Anderson was asleep in the driver's seat, and when Officer Pool woke Anderson, Anderson—according to Officer's Pool's testimony—reached for the gearshift. Officer Pool testified that "it looked like [Anderson] was going for the gearshift to move it."
Additionally, Anderson's statements to Officer Pool regarding where he had been drinking did not comport with the evidence. Anderson told Officer Pool that he had been drinking in his vehicle. But there was no alcohol in Anderson's vehicle nor any other evidence that he had been drinking in his vehicle. Anderson also told Officer Pool that he had not been drinking "at the bar." Anderson's wife, however, testified that she saw charges on Anderson's debit card that night indicating that he had been drinking at Willhoite's bar and "Tap-In's." The jury could have found that Anderson's story as to where he was drinking was evidence of his consciousness of guilt. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (noting that making false statements to cover up a crime is evidence indicating a consciousness of guilt and is admissible to prove the commission of the offense); Couchman v. State, 3 S.W.3d 155, 164-65 (Tex. App.—Fort Worth 1999, pet. ref'd) (holding that defendant's changing story was evidence of a consciousness of guilt); Comeaux v. State, 413 S.W.3d 176, 187 (Tex. App.—Beaumont 2013) (holding that the jury is allowed to infer a consciousness of guilt when defendant lies to police), aff'd, 445 S.W.3d 745 (Tex. Crim. App. 2014).
Considering the evidence in the light most favorable to the verdict, the totality of the circumstances demonstrates that Anderson took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use by starting the engine and turning on the lights. See, e.g., Denton, 911 S.W.2d at 390; Priego, 457 S.W.3d at 570-71; Shields, 2012 WL 219432, at *3; Dornbusch, 262 S.W.3d at 437-38; Hearne, 80 S.W.3d at 678-80. This evidence, the other evidence presented at trial, and the reasonable inferences to be drawn from the evidence—when viewed in the light most favorable to the verdict—would have allowed a rational trier of fact to find that Anderson was operating a motor vehicle while intoxicated. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Anderson cites several older cases for the proposition that there is less evidence to support his DWI conviction than in DWI cases previously reversed for insufficiency. But the DWI cases Anderson relies upon for this proposition predate Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In Geesa, the Texas Court of Criminal Appeals abandoned the alternative-reasonable-hypothesis sufficiency analysis that had required "[a] conviction based on circumstantial evidence [to] exclude every other reasonable hypothesis except the guilt of the accused." Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983), overruled by Geesa, 820 S.W.2d at 161. Post-Geesa, courts examine both direct and circumstantial evidence in the same manner; reasonable inferences are not to be disregarded when they can be drawn from circumstantial evidence.See Dobbs, 434 S.W.3d at 170; Acosta, 429 S.W.3d at 625; Hearne, 80 S.W.3d at 680. We are thus precluded from following the pre-Geesa authorities cited by Anderson and must follow the numerous post-Geesa cases upholding DWI convictions holding sufficient evidence of the "operating" element of DWI exists under circumstances similar to those here. See, e.g., Priego, 457 S.W.3d at 570-71; Shields, 2012 WL 219432, at *3; Dornbusch, 262 S.W.3d at 437-38; Hearne, 80 S.W.3d at 678-80.
Anderson cites Hudson v. State, 510 S.W.2d 583, 84 (Tex. Crim. App. 1974); Hanson v. State, 781 S.W.2d 445, 447 (Tex. App.—Fort Worth 1989), pet. abated, 790 S.W.2d 646 (Tex. Crim. App. 1990); Reddie v. State, 736 S.W.2d 923 (Tex. App.—San Antonio 1987, pet. ref'd); and Coleman v. State, 704 S.W.2d 511, 512 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd).
Accordingly, the pre-Geesa cases cited by Anderson are not controlling. See Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no pet.); Barton, 882 S.W.2d at 459. --------
We overrule Anderson's sole issue.
IV. CONCLUSION
Having overruled Anderson's sole issue, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 21, 2016